Bharatsinh Harising Rathod vs State Of Gujarat
2024 Latest Caselaw 690 Guj

Gujarat High Court

Bharatsinh Harising Rathod vs State Of Gujarat on 25 January, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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     C/SCA/1320/2024                                       ORDER DATED: 25/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 1320 of 2024

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                       BHARATSINH HARISING RATHOD
                                 Versus
                            STATE OF GUJARAT
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Appearance:
MR JIGAR L PATEL(11596) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 25/01/2024

                                   ORAL ORDER

1. Issue Rule, returnable forthwith. Ms. Surbhi Bhati, learned

Assistant Government Pleader waives service of notice of Rule

on behalf of the respondent- State.

2. With the consent of the learned advocates appearing for

the respective parties, the captioned writ petition is taken up

for final hearing.

3. By way of this petition under Article-226 of the

Constitution of India, the petitioner has prayed for the

following reliefs:

"(a) Your Lordship may be pleased to admit and allow this petition;

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C/SCA/1320/2024 ORDER DATED: 25/01/2024

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(b) YOUR LORDSHIPS BE PLEASED to quash and set aside the action of respondent authorities of seizing the Hyundai Smart 210 Machine Serial No.N633D02044 of the petitioner and further be pleased to direct the concerned respondent authorities to release the vehicle of the petitioner at the earliest on such terms and conditions as deemed fit by the Hon'ble Court.

(c) Pending the admission, hearing and final disposal of the present petition, Your Lordship may be pleased to direct the concerned respondent authorities to release Hyundai Smart 210 Machine Serial No.N633D02044 of the petitioner at the earliest on such terms and conditions as deemed fit by the Hon'ble Court;

(d) Grant any other and further relief, as the nature and circumstances of the present case may require."

4. It is the case of the petitioner that, the petitioner is the

owner of the vehicle being Hyundai Smart 210 Machine Serial

No.N633D02044 (hereinafter referred to as 'the vehicle in

question'). On 30.11.2023, inspection was carried-out by the

Officers from the office of the respondent No.2 at Survey

No.275 of village : Mota Kerala, Tal. Sayla, Dist.

Surendranagar, where the vehicle-in-question was found

illegally excavating the back trap minerals and the vehicle-in-

question was seized by the respondent No.2 - authority. On

14.12.2023, a show cause notice came to be issued to one

Ravirajsinh Bharatsinh Rathod. It is the case of the petitioner

that though, the petitioner was the owner of the vehicle-in-

question, no seizure memo or show cause notice was issued to

the petitioner.

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     C/SCA/1320/2024                              ORDER DATED: 25/01/2024

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5. Mr. Jigar L. Patel, learned advocate for the petitioner has

submitted that as is clear that the vehicle-in-question was

seized by the respondent authority on 30.11.2023 followed by

the show cause notice dated 14.12.2023 however, after

seizure of the vehicle-in-question, no steps worth the name

have been initiated by the respondent, much less filing the

F.I.R. as provided under sub-clause (ii) of sub- clause (b) of

sub-Rule (2) of Rule 12 of the Gujarat Mineral (Prevention of

Illegal Mining, Transportation and Storage) Rules, 2017

(hereinafter referred to as the "Rules of 2017"). It is submitted

that in absence of any F.I.R. registered beyond the specified

period, the action of the respondent authority seizing the

vehicle, is illegal and against the principles laid down by this

Court in the case of Nathubhai Jinabhai Gamara v. State of

Gujarat, rendered in Special Civil Application No.9203 of 2020.

It is submitted that, this Court has categorically held and

observed that if the complaint is not registered as envisaged

under sub-clause (ii) of sub-clause (b) of sub-Rule (2) of Rule

12 of the Rules of 2017, in absence of the complaint, the

competent authority will have no option but to release the

seized vehicle without insisting for any bank guarantee.

Therefore, the principles laid down by this Court in the case of

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C/SCA/1320/2024 ORDER DATED: 25/01/2024

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Nathubhai Jinabhai Gamara v. State of Gujarat (supra) applies

to the facts of the present case. It is therefore urged that the

petition deserves to be allowed directing the respondent

authorities to release the vehicle.

5.1 It is urged that the petition be entertained only for the

limited purpose of release of the vehicle.

6. On the other hand, the learned Assistant Government

Pleader, on instructions, has fairly conceded that no First

Information Report has been registered as provided under the

provisions of Rules of 2017.

7. Heard the learned advocates appearing for the respective

parties.

8. It is undisputed that vehicle-in-question was seized on

30.11.2023 by the respondent No.2 - authority followed by the

show cause notice dated 14.12.2023. It is not disputed rather

conceded that after the period of 45 days, no First Information

Report has been registered by the respondent authority.

Therefore, the principle laid down by this Court in the case of

Nathubhai Jinabhai Gamara v. State of Gujarat (supra) applies

to the facts of the present case.

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     C/SCA/1320/2024                                 ORDER DATED: 25/01/2024

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9. In the aforesaid judgment, this Court, while dealing with

the provisions of the sub-clause (ii) of sub-clause (b) of sub-

Rule (2) of Rule 12 of the Rules of 2017, in paragraphs 7, 10

and 11 has held and observed thus: -

"7. Pertinently the competent authority under Rule 12 is only authorized to seize the property investigate the offence and compound it; the penalty can be imposed and confiscation of the property can be done only by order of the court. Imposition of penalties and other punishments under Rule 21 is thus the domain of the court and not the competent authority. Needless to say therefore that for the purpose of confiscation of the property it will have to be produced with the sessions court and the custody would remain as indicated in sub-rule 7 of Rule 12. Thus where the offence is not compounded or not compoundable it would be obligatory for the investigator to approach the court of sessions with a written complaint and produce the seized properties with the court on expiry of the specified period. In absence of this exercise, the purpose of seizure and the bank guarantee would stand frustrated; resultantly the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.

10. The bank guarantee is contemplated to be furnished in three eventualities: (i) for the release of the seized property and (ii) for compounding of the offence and recovery of compounded amount, if it remains unpaid on expiry of the specified period of 30 days; (iii) for recovery of unpaid penalty. Merely because that is so, it cannot be said that the investigator would be absolved from its duty of instituting the case on failure of compounding of the offence. In fact offence can be compounded at two stages being (1) at a notice stage, within 45 days of the seizure of the vehicle; (2) during the prosecution but before the order of confiscation. Needless to say that for compounding the offence during the prosecution, prosecution must be lodged and it is only then that on the application for compounding, the bank guarantee could be insisted upon. In absence of prosecution, the question of bank guarantee would not arise; nor would the question of compounding of offence.

11. The deponent of the affidavit appears to have turned a blind eye on Rule 12 when he contends that application for compounding has been dispensed with by the amended rules inasmuch as; even the amended Rule 12(b)(i) clearly uses the word "subject to receipt of compounding application". Thus the said contention deserve no merits. Thus, in absence of the complaint, the competent authority will have no option but to release the seized vehicle without insisting for bank guarantee. There is thus a huge misconception on the part of the

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C/SCA/1320/2024 ORDER DATED: 25/01/2024

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authority to assert that even in absence of the complaint it would have a dominance over the seized property and that it can insist for a bank guarantee for its."

It has been held that it would be obligatory for the

investigator to approach the Court of Sessions with a written

complaint and produce the seized properties with the Court on

expiry of the specified period. In absence of such exercise, the

purpose of seizure and the bank guarantee would stand

frustrated; resultantly, the property will have to be released in

favour of the person from whom it was seized, without insisting

for the bank guarantee.

10. In view of the fact that the vehicle-in-question came to be

seized on 30.11.2023 and no First Information Report has been

registered within 45 days of the seizure, and the principle laid

down by this Court in the aforesaid case applies to the facts of

the present case, the present petition deserves to be allowed

and is accordingly allowed to the limited extent of directing the

respondent to release the vehicle of the petitioner i.e. Hyundai

Smart 210 Machine Serial No.N633D02044.

11. It is clarified that this Court has not examined the merits

of the issue involved and the observations made are only for

the limited purpose of releasing the vehicle.

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       C/SCA/1320/2024                          ORDER DATED: 25/01/2024

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12. In view of the aforementioned discussion, the petition

succeeds and is accordingly allowed in part. Rule is made

absolute to the aforesaid extent. No order as to costs.

13. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J)

NEHA